Judge: Yolanda Orozco, Case: 21STCV44305, Date: 2022-12-13 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV44305    Hearing Date: December 13, 2022    Dept: 31

MOTION TO COMPEL DEPOSITION OF PERSON MOST

QUALIFIED AND CUSTODIAN OF RECORDS  IS GRANTED IN PART 

Background 

On December 06, 2021, Plaintiff Ramon Corona Ortiz filed a Complaint against Defendant General Motors, LLC and Does 1 to 10 for: 

1) Violation of the Song-Beverly Act – Breach of Express Warranty

2) Violation of the Song-Beverly Act – Breach of Implied Warranty 

On September 29, 2022, Plaintiff moved to Compel the Deposition of Defendant’s Most Qualified (PMQ) and Custodian of Records. 

Defendant filed opposing papers on December 02, 2022. Plaintiff filed a reply on December 06, 2022. 

Legal Standard 

Code of Civil Procedure section 2025.450, section (a) states in relevant part:¿¿ 

¿ 

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿ 

¿ 

(Code Civ. Proc., § 2025.450, subd. (a).)

The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)¿¿  

Discussion 

Plaintiff moves to Compel Defendant to produce a Person(s) Most Qualified (PMQ) and Custodian(s) of Records for deposition. 

Plaintiff’s Meet and Confer Effort 

On July 21, 2022, Plaintiff served Defendant with a Notice of Deposition for PMQ and Custodian(s) of Record. The Deposition Notice identified twenty-six (26) matters for examination and seventeen (17) requests for document production. Plaintiff asserts that the matters requested were identified with reasonable particularity and pertained to warranty claims regarding the subject vehicle, Defendant’s decision not to issue a buyback, and the policies and procedures related to responding to consumer complaints. (Davina Decl. ¶ 3, Ex. A.) 

The deposition was scheduled for August 9, 2022, but the Deposition Notice included a letter asking Defendant or its counsel to provide alternative dates by August 05, 2022. (Davina Decl. ¶ 4, Ex. B.) Plaintiff further met and conferred with Defendant on July 21, 2022. (Id. ¶ 5, Ex. C.) Defendant’s PMQ and Custodian(s) of Record failed to appear for the August 9, 2022 deposition and a certificate of non-appearance was taken. (Id. ¶ 6, Ex. D.) Plaintiff followed up to inquire about Defendant’s non-appearance and failure to provide an alternative deposition date. (Id. ¶ 7.) 

Defendant did not serve timely objections and asserts its failure to timely object was due to mistake or inadvertence. On December 01, 2022, Defendant served objections, which Plaintiff objects to on the basis that they were untimely made and thus, all objections were waived. Defendant also asserts, Plaintiff’s meet and confer was insufficient because it failed to remind Defendant that no opposition had been filed. 

Code of Civil Procedure section 2025.450 states that a meet and confer declaration is required except “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450 subd. (b)(2).) Here, Plaintiff has satisfied the meet and confer requirement. 

No Valid Objection was Served 

A valid objection under 2025.410 pertains to the errors or irregularities in the deposition notice and must be made three calendar days before the deposition date. (Code Civ. Proc., § 2025.410 subd. (b).) Defendant’s objection to the Deposition Notice on the basis that Plaintiff seeks irrelevant information, is not a valid objection under section 2025.410. Moreover, written objections to the deposition notice do not stay the taking of the deposition, and the party objecting to the deposition taking place must move for a motion to quash the deposition notice and stay the taking of the deposition. (Code Civ. Proc., § 2025.410 subd. (c).) 

Second, if Defendant objects to the categories in the deposition notice, the proper course of action is to move for a protective order asking that the scope of the examination be limited to certain matters. (Code Civ. Proc., § 2025.410.) The fact that Defendant objects to the propounded discovery is not a basis for failing to produce its PMQ and Custodian(s) of Record for deposition. If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party. (West Pico Furniture Co. v. Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, 417-418.) 

Here, the burden is on Defendant to move for a protective order and show why producing its PMQ is burdensome or why Plaintiff’s request seeks irrelevant information. Moreover, Defendant waived any objection by not timely objecting. It is not Plaintiff’s responsibility to ensure the GM timely serves an opposition or objection to the deposition notice.  

However, the Court agrees that some of the categories are overbroad and should be limited to documents regarding the same make, model, and year as the subject vehicle and alleging the same vehicle defects outlined in the Complaint from March 9, 2019 (the date the subject vehicle was purchased) to December 6, 2021 (the date the Complaint was filed). 

For the reasons stated, the Motion is GRANTED IN PART. 

Sanctions 

California Code of Civil Procedure section 2025.450, subdivision (g) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿  

The Court finds that sanctions are warranted due to Defendant’s failure to provide a deposition date or timely object to the deposition notice. Plaintiff seeks $1,885.00 in sanctions against Defendant and its counsel of record. 

Plaintiff asserts that under attorney supervision, a law clerk spent 3.00 hours drafting this instant motion, the proposed order, a separate statement, and a declaration at a billing rate of $175.00, totaling $525.00. (Davian Decl. ¶ 8(a).) Plaintiff’s counsel spent 2.0 hours reviewing the instant motion, separate statement, proposed order, notice of motion, and declaration billed at an hourly rate of $325.00, for a total of $650.00. (Id. ¶ 8(b).) An additional 2.0 hours will be spent preparing for and attending the hearing on this matter, totaling an additional $650.00 in fees. (Id. ¶ (d).) 

In total, Plaintiff calculates legal fees to be $1,825.00 plus $60.00 for filing this instant motion. 

The Court notes that no separate statement was filed, and by Plaintiff’s admission, none was required for this motion. Accordingly, 1.0 hour of work will be subtracted from the law clerk and 1.0 hours from Plaintiff’s counsel’s billing. Moreover, the amount spent in preparing for the hearing on this motion is also excessive considering that this is a simple discovery motion. Accordingly, an additional 1.0 hour of work will be subtracted. 

In total, the Court awards $1,060.00 in Sanctions against Defendant’s counsel of record. 

Conclusion 

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person(s) Most Qualified and Custodian(s) of Record is GRANTED IN PART. 

1) Defendant is ordered to produce its Person Most Qualified for deposition within 45 days.   

2.) Defendant GENERAL MOTORS LLC is hereby compelled to produce all responsive documents identified in Plaintiff’s Notice of Deposition of Defendant GENERAL MOTOR LLC’s Person(s) Most Qualified and Custodian(s) of Record within 45 days with the following limitation: documents and records shall be limited to documents regarding the same make, model, and year as the subject vehicle and alleging the same vehicle defects outlined in the Complaint from March 9, 2019 (the date the subject vehicle was purchased) to December 6, 2021 (the date the Complaint was filed). 

3) Defendant’s attorneys of record, The Erskine Law Group, must pay to Plaintiff an award of monetary sanctions in the amount of $1,060.00. 

Plaintiff to give notice.